Yeung Yuk Sim and Others v. Mak Kam Lit and Others
Read the full judgment text of HCA 5150/1980 on BabelCite. This High Court CFI judgment was delivered on 28 May 1982.
1. The plaintiffs are the administrators of the estate of Mr. Leung Cheung Pui (hereinafter referred to the deceased) who was fatally injured in an accident which occurred in the road leading to the Lai Chi Kok Incinerator on the morning of the 15th May, 1979. He was run down by a lorry being driven down the road. The deceased was a Works Supervisor Class II with the Public Works Department and on the morning in question he was accompanying a Mr. Kwan Kam Pui, a Works Supervisor Class I, who was
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HCA005150/1980 Headnote Death - Traffic accident - Employers duty to provide a safe environment for Employees - 'lost years' claim - position of dependants.
BETWEEN
_______________________________ Coram: Hon. Mr. Justice Mayo in Court Date of Judgment: 28 MAY 1982 ___________ JUDGMENT ___________ Background 1. The plaintiffs are the administrators of the estate of Mr. Leung Cheung Pui (hereinafter referred to the deceased) who was fatally injured in an accident which occurred in the road leading to the Lai Chi Kok Incinerator on the morning of the 15th May, 1979. He was run down by a lorry being driven down the road. The deceased was a Works Supervisor Class II with the Public Works Department and on the morning in question he was accompanying a Mr. Kwan Kam Pui, a Works Supervisor Class I, who was inspecting a pump which was intended to extract water from under the vehicle weigh-bridge which is situated in the road where the accident occurred. Opposite the weigh-bridge and on the pavement which runs on the east side of the road there is a manhole which provides access to this pump. It is evident from the photographs which were taken shortly after the accident occurred that there is dense vegetation including tall grass growing on the pavement surrounding the manhole which may obstruct the vision of road users and prevent them from being able to observe workman using the manhole. 2. The plaintiff's claim is divided into two parts. The first part is made against the first defendant who was the driver of the lorry which was involved in the accident and the second defendant who was the owner of the vehicle. Particulars of the negligence alleged on the part of the first defendant are as follows :
The second part of the claim is against the third defendant, the Hong Kong Government. Particulars of the negligence alleged on the part of the Hong Kong Government are as follows :
Liability 3. Mr. Kwan Pui gave evidence for the plaintiffs. He reported for duty in the usual way on the 15th May. He had been aware that on the 13th May there had been heavy rain and that an alarm had been activated relating to the pump I have previously referred to. The alarm was sounding when he reported for duty on the 15th and he sought instructions from his superior, Mr. Ng Ho Chuen as to what action should be taken in respect of the alarm. Mr. Kwan agreed that he did not receive any specific instructions from Mr. Ng to take any remedial action in relation to the pump. Mr. Ng had said that they should wait and see which pump was causing the problem. However, on his own initiative Mr. Kwan decided to take action in an endeavour to rectify the situation. He discussed the matter with the deceased who agreed to accompany him and inspect the pump opposite the weigh-bridge. They then proceeded to the site of the manhole. Mr. Kwan candidly admitted that prior to removing the cover from the manhole he did not give any consideration to the question of his and the deceased safety regarding traffic using the adjoining road. He also said that he had not previously undertaken any assignment of a similar nature at the site of the Lai Chi Kok Incinerator. He did not know of the existence of any traffic signs which could be placed on the roadway to warn motorists of the hazard of men working on or near the road. As can be seen from the photographs which were taken the manhole is situated on the pavement in close proximity to the road. He said that the deceased squatted over the manhole and that no part of his body protruded into the roadway. He himself squatted to the south of the manhole facing the manhole in a northerly direction. After the cover was removed from the manhole they both inspected what was inside and came to the conclusion that the inlet to the water pump was not blocked. They then decided to replace the cover. Immediately after this, Mr. Kwan sensed that an object was passing very close to them in the roadway and the next thing he realised was that the deceased had been dragged along by this object. When he looked around he saw that the object was a lorry and that it had dragged the deceased from his position over the manhole. He estimated the speed of the lorry at the time of the impact as being 30 m.p.h. He said that the deceased's clothing had been torn as a result of his being dragged by the vehicle. He was sure that at the time of the accident there was no vehicle on the weigh-bridge opposite the manhole. He also gave evidence that the lorry had not been moved by anyone after if came to a halt prior to the arrival of the police officer who prepared a sketch map depicting the scene of the accident. 4. The first defendant, Mr. Mak Kam Lit, also gave evidence concerning this accident. Very briefly it was his evidence that he was an experienced lorry driver and that he made approximately six visits each day to the Lai Chi Kok Incinerator as it was his job to transport material from the incinerator to the Shatin Race Course which was then in the course of construction. He was therefore fully familiar with the site where the accident took place. On the morning in question, he proceeded at a slow speed down the private road leading to the Lai Chi Kok Incinerator. He observed a line of lorries queuing up on the right side of the road waiting to be weighed on the weigh-bridge which is situated on the right or westerly side of the said road. It was not necessary for him to have his lorry weighed as it was not loaded. He was collecting material from the incinerator and his vehicle would be weighed as it was leaving the premises. He estimated his speed as being between 5 and 8 m.p.h. as he approached the weigh-bridge. He was driving at a slow speed as he saw that there was a vehicle on the weigh-bridge being weighed and this meant that the space available for him to pass on the road as he passed the weigh-bridge was limited. It was evident from the sketch plan prepared by the police officer who attended shortly after the accident that the distance from the outside rim of the weigh-bridge to the left hand curb was approximately 9'1". The width of the second defendant's lorry is apparently 7'9" or thereabouts. Prior to passing the weigh-bridge, he looked to both his left and his right but did not notice anything of any particular significance. In particular, he did not see any men working at the manhole on the curb to his left. As he was passing the weigh-bridge, he felt his vehicle had run over something. He then immediately applied his brake and brought the lorry to a halt. After he dismounted he saw that a man had been dragged under his lorry. 5. Mr. Mak was subjected to a searching cross-examination by both Mr. Tristram representing the third defendant and Mr. Surjanani who was representing the plaintiff. In the course of his cross-examination the 1st defendant said that he was satisfied that there were no road signs on the private road prior to the weigh-bridge which restricted the speed of road users using the road. However when Mr. Surjanani drew his attention to one of the photographs which had been taken after the accident which indicated the reverse of a road sign he agreed that there was in all probability a sign limiting the speed of vehicles appearing on the other side of the sign. Even more important than this, the 1st defendant was unable to give any convincing explanation to Mr. Tristram for the fact that according to the police's sketch his lorry came to a halt approximately 60' from the manhole where the deceased and Mr. Kwan had been working. He agreed that on the basis that he had been proceeding at only 5 m.p.h. it would have taken approximately nine seconds for him to cover the 60' from the manhole to where the vehicle came to a halt. Considering the evidence as a whole I have no doubt whatever that the first defendant was driving at a speed considerably in excess of the speed he referred to in his evidence. Having said that I do not think that he was driving as fast as 30 m.p.h. which was the estimate of speed made by Mr. Kwan. In determining what was a reasonable speed in all the circumstances it is necessary to have regard to a number of factors. The most important factor was the very limited space available to the first defendant in manoeuvring his lorry through the gap between the vehicle on the weigh-bridge and the curb. I am satisfied that there was a vehicle on the weigh-bridge being weighed at the time of this accident. In this respect I accept the evidence of the first defendant and I reject the evidence of Mr. Kwan. I do not believe that Mr. Kwan ever directed his mind or attention sufficiently to this matter and I am satisfied that the 1st defendant as a professional driver using these premises was much more likely to have noticed whether or not a vehicle was on the weigh-bridge. It may well be the case that if the first defendant had not been travelling at an excessive speed, as I have found, he might well have been able to see the deceased and Mr. Kwan on the left side curb. The photographs taken of the manhole do not assist me greatly in determining whether or not the first defendant would have been able to see the deceased and Mr. Kwan or whether his vision would have been obstructed by the grass. None of the photographs are taken from a similar position to where the first defendant would have been as he proceeded down the road. Generally speaking the closer one is to the left of the road the more difficult it would have been to sight the men working at the manhole. 6. A considerable amount of time in cross-examination was spent upon the exact position of the lorry in the road at the time of the accident. The 1st defendant made various attempts to gauge the distance between his lorry and the vehicle which was being weighed on the weigh-bridge and the distance of the wheels of his lorry to the rim of the weigh-bridge. Clearly the further the lorry was from the weigh-bridge the nearer it would be to the curb on its left side. I do not think that it is realistic to expect any driver, three years after an accident, to attempt to assess with any satisfactory degree of accuracy his distance from the left or the right of the road when the margin of error concerned is a matter of inches rather than a matter of feet. What is manifest is that the gap was a narrow one and inevitably the amount of space on either side of the vehicle would have been extremely limited. I am though entirely satisfied on the evidence before me that the lorry did not mount the pavement on the left side of the road. I am also satisfied that the amount of overhanging of the lorry above its wheels did not amount to more than a few inches and that the lorry could not have come into contact with the deceased unless he moved backwards from the squatting position, it was claimed that he was occupying by Mr. Kwan. I find as a fact that the deceased did move backwards after he replaced the manhole cover. I realise that this finding of fact is in conflict with the evidence given by Mr. Kwan. I regret that I did not find Mr. Kwan to be an altogether convincing and reliable witness. It was definitely my impression that on a number of occasions he endeavoured to give evidence tailored to suit the convenience of the plaintiff's case rather than being an actual recollection of what transpired. 7. Mr. Healy who is the Plant Manager at Lai Chi Kok Incinerator gave evidence on behalf of the third defendant. He is a qualified engineer and has been in charge of the plant since 1976. He described to the Court the measures he had taken to ensure the safety of workers working within the plant. These measures included requiring employees to attend courses conducted by the Labour Department which were designed to instill in the minds of workers the importance and necessity of their taking adequate precautions in the interests of safety. Mr. Healy was in particular asked to define the nature of the work undertaken by Work Supervisors grades I and II and the functional differences, if any, between these grades. Mr. Healy expressed the view that a fairly wide discretion is reposed in Works Supervisors who are skilled men and that they were expected to use their own initiative in undertaking necessary duties. He would in the normal course of events expect that employees such as Mr. Kwan or the deceased would attend to duties such as inspecting the pump under the mancover without receiving any specific or express instructions or authority from any senior officer at the installation. He did not however think that the deceased would, simply by virtue of the fact that he was a Class II Works Supervisor and Mr. Kwan was a Class I Supervisor necessarily expect that Mr. Kwan would issue directions or instructions to the deceased. Mr. Kwan was in a different gang or group to the deceased and this would mean that the chain of command would be different to that which normally pertained. 8. Mr. Healy was asked to give his opinion as to the safety of the position of the manhole in question and to comment upon what safety measures were required to ensure that men working at the manhole would be sufficiently protected from hazards. He agreed that the grass surrounding the manhole was quite high. In this connection he had previously given instructions to the Urban Services Department to cut the grass but this work had not yet been performed. He agreed that the overgrown grass could constitute a hazard. He insisted though that he had inspected the site at the time and that men in while overalls would be visable to a driver. Mr. Mumford pointed out that both Mr. Kwan's and the 1st defendant's evidence contradicted this. It is difficult to determine this on the information available. I do not though consider this to be a conclusive factor. There is no doubt in my mind that the grass would have impaired visability. However I do not think that the 3rd defendant can be expected to prevent any hazards of this nature to decide otherwise would impose an unduly onerous obligation on the part of the 3rd defendant. What it does point to though if that Mr. Kwan and the deceased should have exercised particular care having regard to this hazard. The distance between the curb and the link fence in the vicinity of the manhole was 42". He said that this was a sufficient area to enable a man or men to attend to their duties at the manhole in safety. The man doing this work should remove the cover from the manhole and place it against the fence. He expressed the opinion that the overgrown grass would not unduly obstruct them in proceeding in this manner. He did not think that it would be necessary to install road safety signs if all that the men were doing at the manhole was a routine inspection. His opinion would be otherwise if it was necessary for them to undertake any more protracted exercise. Mr. Healy said that he had driven down the access road himself in a lorry and he was satisfied that even if the grass was overgrown as depicted in the photographs it should be possible for the driver of a lorry to see men in white overalls working at the manhole at a distance of 25' to 30' distance from it. He had also simulated an exercise whereby two of the largest lorries authorised to use the road had passed each other while one of them was stationary on the weigh-bridge and he was satisfied that there was sufficient space for the vehicles to pass without jeopardizing the safety of the vehicles. He was, however, of the opinion that it would be necessary for any vehicle using the access road to comply with the speed limit which had been imposed. Generally vehicles did comply with the speed limits. He said that when he had assumed his duties as Plant Manager in 1976 he had taken steps to ensure that notices were displayed limiting the speed of vehicles using the road. Three signs had been erected. The speed limit was 5 m.p.h. I accept this evidence as I do most of his evidence. 9. I am satisfied that the third defendant has taken all reasonable steps to provide a safe system of work. I am also satisfied that it is realistic to accept that as Works Supervisor Class I and II, a certain amount of authority was reposed in both Mr. Kwan and in the deceased. In addition to this, their relative seniority was such that they were basically on an equal footing and the circumstances were such that they were both operating together on their own initiative rather than the deceased acting under the instructions of Mr. Kwan. 10. For the reasons given previously, I find that the plaintiffs have proved that the first and second defendants are liable in negligence by virtue of my finding of fact that the first defendant was driving at an excessive speed. This was a major factor in bringing about this accident. I am also satisfied that the plaintiffs have not established that the third defendant was guilty of any negligence. Their claims against the third defendant will therefore be dismissed. 11. It is also necessary for me to consider whether the deceased was guilty of contributory negligence. I have no doubt whatever that he was guilty of some contributory negligence. It should have been obvious to him that it was imperative for him and Mr. Kwan to take adequate measures to ensure their safety from road users. It must have been obvious that when they were squatting by the manhole road users might encounter difficulty in seeing them. As I have previously stated in this judgment I find as a fact that the deceased must have moved back towards the road after he replaced the manhole cover. Having regard to all of the surrounding circumstances I find that his contributory negligence is such that he was 50% to blame for this accident. Any damages recoverable will be reduced by this amount. Quantum 12. The deceased widow, Madam Yeung Yuk Sim, gave evidence. She said that she and the deceased had three children. First, a daughter was born in 1962, the second, a son in 1963 and the third another son in 1966. At the time of her husband's death all three children had been studying. Shortly after this the two elder children had discontinued their studies and had obtained employment and were now contributing financially to the family. The youngest son was still studying. At the time of his death, the deceased was earning $1,925 per month. It was his practice to give to her his entire salary and for him then to withdraw between $150 to $200 for his own use. She then gave particulars of all household expenditure including payments of rent and public utility bills and food etc. and it was evident that the total of these amounts approximately came up to the amount of the deceased salary. It was evident from Madam Yeung's evidence that she and her family led a fairly frugal existence. In any event, there appeared to be very little or no money available at the end of each month which could be saved. I found Madam Yeung to be an honest and truthful witness and I have no hesitation in accepting her evidence. 13. Mr. Collier, a Chief Engineer in the Public Works Department gave evidence concerning the deceased employment. He said that he had very little doubt that had the deceased not been killed in this tragic accident he would have been promoted from a Class II to a Class I Works Supervisor. The main criteria adopted in determining whether a Works Supervisor would be promoted was his length of service or seniority. The only exceptions to this rule would be if the employee had either misconducted himself or proved to be incompetent in the performance of his duties. Neither of these considerations applied to the deceased. If the deceased had been promoted he would have moved to Point 16 on the Master Pay Scale. There were then three incremental points on the Master Pay Scale available to Works Supervisors Class I and he could have progressed to Point 19. The present salary for Point 16 is $3,930 per month and the salary at Point 19 is presently $4,635. Mr. Collier's evidence concerning the deceased and his promotion prospects was corroborated by Mr. Healy. He said that he had in fact made a recommendation to the Secretary for the Civil Service for the deceased to be promoted shortly before his death. I accept that the deceased would in fact have been promoted and this is a factor which will be borne in mind in making calculations in respect of damages to be awarded. 14. Both Mr. Mumford and Mr. Surjanani made detailed submissions as to how the lost years claim should be formulated under the Law Amendment and Reform Consolidation Ordinance Cap. 23 (hereinafter referred to as larco). Unfortunately, the concept of lost years is a rather artificial piece of logic and it is evident from recent cases that a number of different approaches have been adopted to the many problems which arise. At the date of the trial guidance in Hong Kong has mainly been sought from the case of V.S.L. Engineers (Hong Kong) Limited v. Yeung Wing(1). Both counsel drew my attention to another case which has very recently been heard by the Court of Appeal. This case is the Personal Representatives of the Estate of Wong Sai Chuen v. Tam Mei Chun and others(2). At the time of the hearing, the Court of Appeal had not delivered its judgment and accordingly I deferred writing this judgment until I had had an opportunity of considering this case. I have now done so and find it to be most helpful. Certain clear principles emerge which are at variance with those propounded in V.S.L. Engineers(1). 15. It is evident from page 7 of the judgment in Wong Sai Chuen(2) that a new head of damages has been created by the House of Lords. The manner in which the head of damages is calculated was propounded by Lord Scarman at page 265 of Gammoh v. Wilson(3). Here it is stated :
16. Roberts, C.J. sets out a correct approach for a trial judge on page 10 of his judgment in Wong Sai Chuen(2). It is as follows :
17. I propose adopting this formula to the facts I have found in the present case. At the time of his death, the deceased was earning $1,925. His widow agreed that he made deductions for his personal expenditure of between $150 and $200 per month. I propose adopting a median figure of $175 for the purpose of this deduction. Further, I propose deducting a figure to reflect a proportion of the household expenditure which was attributable to the deceased. I agree with the figure which was proposed by Mr. Mumford of $300 per month for that purpose. The net figure to be adopted as a multiplicand is therefore $1,450 per month. It is almost exactly three years from the occurrence of this accident and I therefore propose multiplying the figure of $17,400 per annum by three years which gives a total of $52,200. 18. It is now necessary to ascertain a multiplicand in respect of future loss of earnings. As I have said I accept Mr. Collier's evidence that the deceased would have been promoted to being a Works Supervisor Class I. I propose treating his income as being the present salary at Point 19 on the Master Pay Scale being the highest point the deceased could have achieved as a Works Supervisor Class I. This salary is presently $4,630 per month. However, it is a fact of life that increases in salary are largely brought about as a result of an increased cost of living. Indeed in her evidence the deceased widow agreed that most of the items of expenditure that she referred to had substantially increased since the date of her husband's death. Doing the best I can to calculate his expenditure I find that he would have set aside for himself as personal expenditure the sum of $300. I would further calculate that the share of the general pool of outgoings attributable to him would amount now to $400 thus making a total for his personal expenditure of $700. I propose therefore adopting a net figure of $3,930. 19. The next matter I must refer to is what multiplier to adopt. I accept that the deceased was a healthy man of 46 at the time of his death. He had a good job with the Hong Kong Government and there is every reason to suppose that he would have remained a Government Servant. Mr. Collier gave evidence that Works Supervisors are encouraged to continue their employment beyond the age of 55 which is the normal retiring age up to the age of 60. Having considered all factors carefully I propose adopting a multiplier of 10 years. Three of those 10 years have already passed by reference to the calculations I made in respect of the amount calculated to be payable up to the date of this action. There remains a period of 7 years. The amount of the claim for the loss of future earnings is therefore $3,930 x 12 x 7 which equals $330,120. 20. It is now established law that a claim for loss of expectation of life can be maintained under larco. I propose awarding the conventional amount of $15,000 under this head. I also propose awarding funeral expenses of $100 as claimed. 21. It would be noted from the above that no deduction was made in respect of the deceased supporting his family. Clearly it follows from this that there is a merger of awards under larco and the Fatal Accidents Ordinance (hereinafter refer to as F.A.O.). This principle was referred to at page 14 of Wong Sai Chuen (2) when the Court of Appeal followed the reasoning of the House of Lords in Davis v. Powell Duffryn Associated Collieries Limited(4). It appears probable that in almost every case involving the lost years principle the amount awarded under larco will exceed the amount payable under F.A.O. which will come submerged within it. There may however be some cases where it will be necessary to consider claims under the F.A.O. if the dependants are different to the beneficiaries of the estate of the deceased. No problem arises in the present case. The deceased died intestate and his only dependants were his widow and his children who will of course inherit the deceased's estate in accordance with the provisions contained in the Intestate Estates Ordinance Cap. 73. There is therefore no award under F.A.O. in this case. 22. The total amount of the award is $397,420. Fifty percent is deducted from this amount by virtue of the deceased's contributory negligence. In addition to this, the first and second defendants will reimburse to the Hong Kong Government the monies which were paid by the latter to the deceased family under the provisions of the Employees Compensation Ordinance Cap. 282. This amount will be deducted from the monies payable to the plaintiff. 23. I will hear the parties as to what interest is to be payable on the award I have made and also on the subject of costs.
(1) 1981 H.K.L.R. 130 (2) Civil Appeal No. 133 of 1981 (3) 1981 2 W.L.R. page 248 (4) 1942 A.C. 601 Representation: Mr. Surjanani (D.L.A.) for Plaintiff. Mr. Mumford (S.T. Poon) for 1st & 2nd defendants. Mr. Tristan (A.G.) for 3rd defendant. |